Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306

Supreme Court New South Wales

Medium Neutral Citation: Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306 Hearing dates: 9 March 2021 Date of orders: 31 March 2021 Decision date: 31 March 2021 Jurisdiction: Common Law Before: Simpson AJ Decision: See [71] and [72] Catchwords: ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – where relief sought includes an order in the nature of certiorari – where appeal panel found demonstrable error in decision-maker's approach – where demonstrable error included applying the wrong test – where appeal panel proceeded to its own assessment – whether appeal panel erred in identifying error in decision-maker's application of the wrong test – whether appeal panel itself applied the wrong test STATUTORY INTERPRETATION – subordinate legislation – scope of empowering provisions – where the primary legislation provides for a deduction for any proportion of an impairment that is due to a previous injury or pre-existing condition or abnormality – where the primary legislation provides that impairment is to be assessed in accordance with guidelines – where the application of the guidelines would require a nil deduction for a pre-existing but asymptomatic psychiatric injury or condition – whether the guidelines are inconsistent with the primary legislation – whether the guidelines are beyond power WORKERS COMPENSATION – medical assessment – assessment of degree of permanent impairment – deduction for pre-existing impairment – where claimant has suffered previous psychiatric injury – where condition related to previous psychiatric injury was asymptomatic at time of present injury – where asymptomatic condition contributed to impairment suffered as a result of present injury – whether any deduction should be made Legislation Cited: State Insurance and Care Governance Act 2015 (NSW) Supreme Court Act 1970, ss 69, 75 Workers Compensation Act 1987 (NSW), ss 9, 66 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 321, 323(1), 328, 376 Cases Cited: Broadspectrum (Australia) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320 Broad-spectrum (Australia) Pty Ltd v Wills [2019] NSW WCC MA 13 Broadspectrum (Australia) Pty Ltd v Wills [2019] NSWSC 1797 Cole v Wenaline Pty Ltd [2010] NSWSC 78 Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liquidation) [2013] NSWSC 365 Frost v Kourouche [2014] NSWCA 39 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 Mathew Hall Pty Ltd v Smart [2000] NSWCA 284 Siddik v Work Cover Authority of NSW [2008] NSWCA 116 Category: Principal judgment Parties: David Marks (Plaintiff) Secretary, Department of Communities and Justice (First Defendant) Appeal Panel: John Wynyard, Dr Julian Parmegiani, Dr Michael Hong (Second Defendant) Registrar, Workers Compensation Commission of NSW (Third Defendant) Representation: Counsel: B G McManamey (Plaintiff) L Morgan (First Defendant) Submitting appearance (Second and Third Defendants)